CONLETH ANYAMELE ONYENOBI v. LOUIS AMADI & ORS
(2013)LCN/6182(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of May, 2013
CA/PH/643/2008
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
Between
CONLETH ANYAMELE ONYENOBI
(Alias Opara) Appellant(s)
AND
1. LOUIS AMADI
2. JOHN AMADI
3. UGOCHUKWU AMADI
4. ONYEKACHI AMADI Respondent(s)
RATIO
WHETHER OR NOT COURTS OF LAW ARE CREATION OF THE CONSTITUTION OR A STATUTE
Now, it is trite law that Courts of Law are creation of either the Constitution or statute; and therefore, their jurisdiction is circumscribed or limited to those conferred on it by the Constitution or the statute. In the same vein, Appeals are creatures of the Constitution or statute. In other words, an appellate jurisdiction is generally conferred on the appellate Court either by the Constitution or a statute of the National or State House of Assembly. In that respect, the Court has jurisdiction to hear and adjudicate on a matter brought before it, unless it has such jurisdiction donated or conferred on it by the Constitution or other statute. Furthermore, failure to comply with the statutory requirements prescribed by the relevant laws under which such appeals may be competently filed before the Court will deprive the appellate Court of the jurisdiction to hear and determine the appeal. See EHUWA v O.S.I.E.C. (2006) 18 NWLR (Pt.1012) p.544: IWUAGOLU v AZYKA (2007) 5 NWLR (pt.1028) p.613 and UWAZURIKE v A.G. FEDERATION (2007) 8 NWLR (Pt.1035) P.1. PER TSAMMANI, J.C.A.
THE JURISDICTION OF THE COURT OF APPEAL TO ADJUDICTAE ON A MATTER BEFORE IT
The jurisdiction of the Court of Appeal to adjudicate on any matter brought before it is donated by the Constitution and other statute conferring right of appeal to the Court of Appeal. That being so, any appeal to the Court of Appeal must be within the confines of such jurisdiction as is conferred by either the constitution or other statute. Failure to comply, by any Appellant, will render such appeal incompetent and thereby deprive the Court of Appeal of jurisdiction to adjudicate on such appeal. The jurisdiction of the Court of Appeal to adjudicate upon any appeal from the decision or judgment of a Customary Court of appeal of a State is enshrined in Section 245 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Accordingly, Section 245 (1) of the 1999 Constitution (supra) stipulates that-
“245(1) An appeal shall lie from decisions of the Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary law and such other matters as may be prescribed by an Act of the National Assembly.”
By the above stated provision of the Constitution therefore, the jurisdiction of the Court of Appeal to hear and determine appeals from decisions of a Customary Court of Appeal of a state is limited to cases in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary Law; and such other matters as may be prescribed by the National Assembly. It therefore means that an appeal to the Court of Appeal from the decision of the Customary Court of Appeal must be confined or limited to a complaint with respect to a question of customary law. In the absence of a complaint by a ground of appeal raising the issue of Customary Law, the Court of Appeal would be deprived of jurisdiction to adjudicate on the matter, save in a case where the National Assembly has extended the jurisdiction of the Court of Appeal to hear an appeal from the Customary Court of Appeal on such matters other than customary law. See HIRNOR v YONGO (2003) 9 NWLR (Pt. 824) p.77; TIZA v BEGHA (2005) 15 NWLR (PT.949) p.616; ATSEN v SHA (1999) 1 NWLR (Pt.586) p.265. The question that poses difficulty is how to determine whether or not an appeal from a Customary Court of Appeal to the Court of Appeal is on questions of Customary Law.
In the determination of the question whether or not a ground of appeal from the decision of a Customary Court of Appeal to this Court, is one of Customary Law, it is not the subject matter of the action which had conferred jurisdiction on the Customary Court of Appeal from the decision of the Customary Court, that will determine the jurisdiction of the appellate Court. What the Court should consider is the nature of the complaint arising from the decision of the Customary Court of Appeal to the Court of Appeal. In that respect, the wordings of the grounds of appeal would not be the only document to be relied upon. Rather, it would be necessary to peruse the entire record of appeal, so as to ascertain the issue in dispute in the appeal. See ISAMADE v OKEI (1998) 2 NWLR (Pt. 538) p.455 at 469.
The foundation for the interpretation of Section 245(1) of the 1999 Constitution (supra) was laid down by Uwais; JSC (as he then was) in the case of GOLOK v DIYALPWAN (1990) NWLR (Pt.139) p.411 wherein Section 224(1) of the Constitution of the Federal Republic of Nigeria, 1979 (which is a provision in pari materia with S.245 (1) of the 1999 Constitution) was interpreted. Therein, it was laid down that there is only one right of appeal to the Court of Appeal from the decision of the Customary Court of Appeal of a State. That the right pertains to a complaint or ground of appeal which raises a question of customary law alone; and that it does not accommodate any complaint or ground of appeal which does not raise question of Customary Law. That decision was followed in plethora of other cases such as ATSEN v SHA (1999) 1 NWLR (Pt.586) p. 265, PAM v GWOM (2010) 2 NWLR (Pt. 644) p.322; IYAMU v AIGBIRENWEN (1992) 2 NWLR (pt. 222) at pp.241-244; DAMBAK v MANDING (1998) 2 NWLR (Pt. 539); C.C.A; EDO STATE v AGUELE (2006) 12 NWLR (pt. 995) p. 545- and HIRNOR v YONGO (2003) 9 NWLR (pt. 824) p. 77. See also TIZA v BEGHA (supra).
The position on the issue was made clearer by Muntaka-Coomasie; JCA (as he then was) in the case of GYANG v CHAIRA (1993) 13 NWLR (Pt.581) p. 190 at 199, wherein the leaned jurist (now of the Supreme Court) stated that:
“It is manifest from the reasonable interpretation of Section 224(1) of the 1979 Constitution as amended) that:
(a) Any ground of appeal that raised the question of the failure of the Plaintiff to prove his case or her case in accordance with Customary Law, was competent ground.
(b) Any ground of appeal filed touching on res judicata cannot be foreign to Customary Law.
(c) Any ground of appeal which relates to law is clearly within the ambit of Customary Law and is valid ground of appeal.
(d) Grounds dealing with traditional inheritance of borrowing/Loan of land in dispute are competent grounds. Conversely, any grounds which are akin to omnibus grounds or general in nature is alien to customary law and is invalid, so also where the ground of appeal complains principally against the findings of Customary Court of Appeal as to facts on the root of title, or identity of the land then they are not issues of Customary law, therefore incompetent and invalid.”
Similarly, in the case of ATSEN v SHA (supra) it was held by this Court that issues on weight of evidence which is a question of fact, issues of territorial jurisdiction and jurisdiction on subject matter, admissibility of documents and bias on the part of the trial Court are not issues of Customary Law, because they do not put in issue what the Customary Law on the particular point ought to be. His Lordship Ayoola; JSC expatiated more on this issue in the case of PAM v GWOM (2000) 2 NWLR (Pt.644) p.322 when he held that:
“The plain and unambiguous meaning in Section 224(1) is that, where in civil proceedings the decision of the Customary Court of Appeal of a State with respect to any question of Customary Law the Appellant may appeal as of right, the question is; when is a decision in respect of a question of Customary Law?. I venture to think that a decision is in respect of a question of Customary Law when the controversy involves a determination of what the relevant Customary Law is and the application of Customary Law so ascertained to the question in controversy. Where the parties are in agreement as to what the applicable Customary Law is and the Customary Court of Appeal does not need to resolve any dispute as to what the applicable Customary Law is, no decision as to any question of Customary Law arises. However, when; notwithstanding the agreement of the parties as to the applicable Customary Law, there is a dispute as to the extent and manner in which such applicable Customary law determines and regulate the right, obligation or relationship of the parties having regard to facts established in the case, a resolution of such dispute can in my opinion be regarded as a decision with respect to a question of customary Law. Where the decision of the Customary Court of Appeal turns purely on facts, or on question of procedure, such decision is not with respect to a question of Customary law, notwithstanding that the applicable law is customary law.” PER TSAMMANI, J.C.A.
WHETHER OR NOT RES JUDICATA TOUCHES ON THE JURISDICTION OF THE COURT TO LITIGATE AGAIN ON A MATTER
It is trite law that res judicata touches on the jurisdiction of the Court to litigate again on a matter which had been adjudicated upon and determined by a Court of competent jurisdiction. As rightly argued by Learned Counsel for the Appellant, the ground raises the issue of jurisdiction based on the plea of res judicata. I however find it necessary to point out that, the issue of jurisdiction raised here is on res judicata which is a question of law. It is therefore an issue of jurisdiction. See UKAEGBU v UGOJI (1991) 6 NWLR (Pt. 196) p.127 at 145; BASSEY v EKANEM (2001) 1 NWLR (Pt.694) p.364 at 372 and AKOMA v OSENWOKWU (2004) 11 NWLR (Pt.883) p.98. PER TSAMMANI, J.C.A.
WHETHER OR NOT THE SERVICE OF HEARING NOTICE CONFERS A COURT JURISDICTION TO ENTERTAIN AN APPLICATION OR SUBSTANTIVE MATTER BEFORE IT
This is so because, it is the law that, it is the service of hearing Notice that confers on a Court jurisdiction to entertain either application or the substantive matter before it. In the absence of issuance of a hearing Notice on the parties, the trial Court would have no jurisdiction to hear and adjudicate on the matter. Accordingly, once a party has been served a hearing notice, the Court would be competent to proceed with the matter without him, as at that instance, the Court would be clothed with the vires to proceed against him. This is because, once there is prove of service on a party, his absence may be construed as negligent or deliberate. In that instance, he cannot claim any breach of fair hearing, since he has on his own volition absented himself at the proceedings affecting his rights or obligations. Generally however, failure to effect hearing notice or of any process, where one is required renders the proceedings and judgment subsequent thereon a nullity. See ALH. Y. DAN HAUSA & CO. LTD. V PANATRADE LTD (1993) N.W.L.R (Pt. 298) P.204; DEDUMA v OKORODUDU (1976) 9-10 S.C. p.228; OGUNDOYIN v ADEYEMI (2001) 13 NWLR (Pt.730) p.403; ODENIJI v AKINPELU (1998) 7 NWLR (pt.557) P.174; OYEYIPO v OYINLOYE (1987) NWLR Pt.50) p-464 and OKON v ADIGWE (2011) 15 NWLR (Pt.1270) p.350. PER TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Customary Court of Appeal of Imo State, sitting at Owerri in Appeal Case No. CCA/OW/A/25/2006 delivered on the 30th day of April, 2008 wherein it affirmed the judgment of the Customary Court, Owerri North Local Government Area delivered on 30/5/2004.
The claims of the Respondents as Plaintiff at the trial Customary Court against the Appellant as Defendant were as follows:
1. Declaration by the Honourable Court that Plaintiff is entitled to Customary Right of occupancy of the following pieces or parcels of land known as and called:
(1). Egbelu
(2). Ama Mbutu
(3). Oru Uzo Orie Mbutu
(4). Oru Opum OPovu
(5). Ishi Orie
(6). Ishi Mmiri
(7). Uhu Ekiti
(8). Uhu Okwu Ogu
(9). Uhu Azuno
(10). Uhu Port Harcourt
(11). Nda gwurugwu
(12). Uhu Okukoro
(13). Oba;
all of which are lying and situate at Ubah-Emii in Owerri North L.G.A. of Imo State.
(2) The sum of Two Thousand Naira (N2, 000.00), being General Damages for trespass upon the said piece or parcels of land of the Plaintiff. Perpetual Injunction restraining the Defendant, his heirs, successors in title, privies, agents, workmen or any person claiming through him from further trespass into the afore-said pieces or parcels of land of the Plaintiff.
At the trial Court, the Defendant/Appellant filed a motion on Notice wherein he objected to the hearing of the Plaintiff/Respondent’s Suit and prayed that same be dismissed on the ground that it was affected by res judicata, the matter having been heard and determined in a previous Suit between the parties on the same thirteen (13) parcels of land the subject of the instant case. The trial Customary Court, after listening to and considering the arguments of Counsel dismissed the objection and ordered that the Suit proceeds to hearing. The Respondent testified but called no other witness and closed his case. The record of appeal at pages 51-54 shows that the trial Court paid a visit to the locus in quo and the matter was adjourned for judgment with advise on the Respondent’s Counsel to file written Address. There is no evidence on the record showing that such address was filed as advised. Thus the trial Customary Court in a judgment delivered on the 31/5/2004, found that the evidence of the Plaintiff/Respondent was unchallenged and therefore entered judgment for the Respondent granting all the reliefs sought by him. The Appellant who was Defendant at the trial Customary Court was aggrieved by the decision of the trial Customary Court and therefore filed an appeal to the Customary Court of Appeal.
The Customary Court of Appeal granted leave to the Defendant to appeal the decision or judgment of the said trial Customary Court, on the 13/6/2006. The Notice of Appeal filed consequent on that order is at pages 62-65 of the record of appeal. Parties filed and exchanged Briefs of Arguments, and in a considered judgment delivered on the 30/4/2008, the Imo State Customary Court of Appeal dismissed the Defendant/Appellant’s appeal before it and affirmed the judgment of the trial customary Court delivered on the 31/5/2004. Dissatisfied with the judgment of the Customary Court of Appeal, the Appellant has further appealed to this Court vide Notice of Appeal dated the 26/05/2008 and filed the 27/05/2008.
The Notice of Appeal consists of three (3) Grounds of Appeal which l endeavour to reproduce hereunder, but without their particulars as follows:
1. The Lower Court erred in law when it held that Suit No. CC/OWN/40/2002 LIVINUS NWAMADI ALHAJI V CONLETH AYAMELE ONYENOBI (alias Opara) was not caught by the principle of Res Judicata.
2. The Lower Court erred in law by holding that Appellant was given fair hearing at the trial of the Suit by Customary Court, Owerri North Local Government Area.
3. The Lower Court erred in law by holding that Respondent proved his entitlement/ownership to the 13 pieces of land situate and lying at Uba-Emii in the Owerri North Local Government Area.
In the course of this appeal, the original Respondent, Livinus Nwamadi Ahaji died on the 12/01/2012. Consequently, leave was granted by this Court to the Respondents on record, to substitute the said Livinus Nwamadi Ahaji, as Respondents in this appeal. Parties were then directed to refile their Briefs of Arguments already filed, to reflect the amendment in the names of the Respondents.
The Amended Appellant’s Brief of Arguments is therefore dated the 13/12/2012 and filed the 18/12/2012. Therein, the Appellant nominated three issues for determination as follows:
1. Whether the Lower court was right to hold that Suit CC/OWN/40/2002 was not caught by the principle of RES JUDICATA and affirming that the Trial Court had jurisdiction to adjudicate on the issues and reliefs sought therein.
2. Whether the Lower Court was right to hold that the Appellant was given fair hearing at the trial of the Suit.
3. Whether the Respondent proved his entitlement to the 13 pieces of land in question.
The Amended Respondents’ Brief of Arguments was dated the 08/02/2013 and filed same day. In the said Brief of Arguments three issues were distilled for determination as follows:
1. Whether the Customary Court of Appeal was right when it held that the Appellant did not establish Res Judicata.
2. Whether the Customary Court of Appeal was right when it held that the Appellant was given fair hearing.
3. Whether the Customary Court of Appeal was right when it held that the Respondent proved his entitlement to the 13 pieces of land in dispute.
Looking at the issues formulated by the Appellant and the Respondent, it is clear that the issues are similar in scope and con. In that respect, I shall adopt the issues formulated by the Appellants in the determination of this appeal.
Before proceeding to consider the issues placed before us for determination in this appeal; it is necessary to print out that the Respondents had raised a Preliminary Objection to the competence and thus, hearing of this appeal, which was argued at pages 24 of the Amended Respondents’ Brief of Arguments. I propose to consider same before proceeding on the substantive appeal if necessary. In arguing the preliminary objection, Learned Counsel for the Respondents formulated one issue for the determination; and which is:-
“Whether the Appellant’s grounds of appeal are competent. In other words, whether they raise questions involving customary law”
Arguing on the Preliminary Objection therefore, learned Counsel for the Respondent contended that, the Appellant’s grounds of appeal are incompetent as they do not raise questions of customary law. That, it is only when the grounds of appeal raise questions of Customary law that this Court will be clothed with jurisdiction to entertain the case or appeal. Section 245(1) of the Constitution of the Federal Republic of Nigeria and the cases of PAM v. GWOM (2000) FWLR (Pt.1) p.1 and GOLOK v DIYALPWAN (1990) 3 NWLR (PT. 139) p.411 were cited in support.
Based on the above contention, learned Counsel for the Respondents submitted that, Ground 1 of the Appellant’s Ground of Appeal merely raised the issue of res judicata, but has not stated what the customary law of the parties is and how it has been applied to the question in controversy. He also cited BENSON EBIRIM DURUCHUKWU V. HILARY NTTASHAGOW in APPEAL NO.CA/PH/341/98 (unreported) delivered on 27th June, 2002 per Akpiroroh; JCA at p.8. That Grounds 2 and 3 of the Grounds of appeal suffer the same fate, as they did not state what the Customary Law of the parties is and how the said customary law has been applied to the question in controversy. We were accordingly urged to hold that all the three (3) grounds of appeal are incompetent as they do not raise questions of Customary Law.
The Appellant had filed an Amended Appellant’s Reply to the preliminary Objection. It is dated the 13/12/2012 and filed the 18/12/12. Therein, Appellant contended that, Ground one of the Notice of Appeal raised the issue of jurisdiction on the ground that, the claims of the Respondents had been adjudicated upon by a Court of competent jurisdiction. That jurisdiction is the life wire or blood that gives life to any adjudication in every system of law that comes into focus. He then relied on the cases of NWIGWE v OKERE (2008) 13 NWLR (Pt. 1105) p.445 and GOBANG v SHELIM (2003) 3 NWLR (pt.807) p.286 at 294 per I.T. Muhammad; JCA (as he then was) to submit that, the concept of jurisdiction is of universal application and also known to Customary Courts, and that error of jurisdiction by a Customary Court which is a defect intrinsic to the adjudication, is an issue or question of Customary Law and therefore appealable as an issue of Customary Law. That a plea of res judicata, if successful, erases the jurisdiction of a Court to hear the case.
On ground two 2) which raises the issue of fair hearing, which is a mandatory requirement of the constitution learned Counsel submitted that, a breach of fair hearing is very fundamental breach in the administration of justice in a trial before any Court of competent jurisdiction. He then submitted that where it is breached, the proceeding would have been conducted without jurisdiction. The cases of OLAGUNJU v OYENIRAN (1996) 6 NWLR (pt.453) p.127; BALAMI v BWALA (1993) 1 NWLR (Pt.267) p.51 and BAKARE v L.C.C.S.C. (1992) 8 NWLR (Pt. 262) p.641 were cited in support.
It was further submitted for the Appellant that, Ground 3 contests or questions the Respondent’s proof of ownership of the 13 parcels of land in accordance with Customary Laws of the parties. We were then urged to dismiss the Preliminary Objection.
Responding on points of law, Learned Counsel for the Respondent insisted that none of the Appellant’s grounds of appeal as framed, raised any question of customary as provided by Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999. That non of the grounds of appeal has stated what the Customary Law of the parties is and how the said Customary Law has been applied to the question in controversy. It was also submitted that the cases cited by the Appellant are not applicable to this case. We were again called upon to strike out the appeal.
Now, it is trite law that Courts of Law are creation of either the Constitution or statute; and therefore, their jurisdiction is circumscribed or limited to those conferred on it by the Constitution or the statute. In the same vein, Appeals are creatures of the Constitution or statute. In other words, an appellate jurisdiction is generally conferred on the appellate Court either by the Constitution or a statute of the National or State House of Assembly. In that respect, the Court has jurisdiction to hear and adjudicate on a matter brought before it, unless it has such jurisdiction donated or conferred on it by the Constitution or other statute. Furthermore, failure to comply with the statutory requirements prescribed by the relevant laws under which such appeals may be competently filed before the Court will deprive the appellate Court of the jurisdiction to hear and determine the appeal. See EHUWA v O.S.I.E.C. (2006) 18 NWLR (Pt.1012) p.544: IWUAGOLU v AZYKA (2007) 5 NWLR (pt.1028) p.613 and UWAZURIKE v A.G. FEDERATION (2007) 8 NWLR (Pt.1035) P.1.
The jurisdiction of the Court of Appeal to adjudicate on any matter brought before it is donated by the Constitution and other statute conferring right of appeal to the Court of Appeal. That being so, any appeal to the Court of Appeal must be within the confines of such jurisdiction as is conferred by either the constitution or other statute. Failure to comply, by any Appellant, will render such appeal incompetent and thereby deprive the Court of Appeal of jurisdiction to adjudicate on such appeal. The jurisdiction of the Court of Appeal to adjudicate upon any appeal from the decision or judgment of a Customary Court of appeal of a State is enshrined in Section 245 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Accordingly, Section 245 (1) of the 1999 Constitution (supra) stipulates that-
“245(1) An appeal shall lie from decisions of the Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary law and such other matters as may be prescribed by an Act of the National Assembly.”
By the above stated provision of the Constitution therefore, the jurisdiction of the Court of Appeal to hear and determine appeals from decisions of a Customary Court of Appeal of a state is limited to cases in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary Law; and such other matters as may be prescribed by the National Assembly. It therefore means that an appeal to the Court of Appeal from the decision of the Customary Court of Appeal must be confined or limited to a complaint with respect to a question of customary law. In the absence of a complaint by a ground of appeal raising the issue of Customary Law, the Court of Appeal would be deprived of jurisdiction to adjudicate on the matter, save in a case where the National Assembly has extended the jurisdiction of the Court of Appeal to hear an appeal from the Customary Court of Appeal on such matters other than customary law. See HIRNOR v YONGO (2003) 9 NWLR (Pt. 824) p.77; TIZA v BEGHA (2005) 15 NWLR (PT.949) p.616; ATSEN v SHA (1999) 1 NWLR (Pt.586) p.265. The question that poses difficulty is how to determine whether or not an appeal from a Customary Court of Appeal to the Court of Appeal is on questions of Customary Law.
In the determination of the question whether or not a ground of appeal from the decision of a Customary Court of Appeal to this Court, is one of Customary Law, it is not the subject matter of the action which had conferred jurisdiction on the Customary Court of Appeal from the decision of the Customary Court, that will determine the jurisdiction of the appellate Court. What the Court should consider is the nature of the complaint arising from the decision of the Customary Court of Appeal to the Court of Appeal. In that respect, the wordings of the grounds of appeal would not be the only document to be relied upon. Rather, it would be necessary to peruse the entire record of appeal, so as to ascertain the issue in dispute in the appeal. See ISAMADE v OKEI (1998) 2 NWLR (Pt. 538) p.455 at 469.
The foundation for the interpretation of Section 245(1) of the 1999 Constitution (supra) was laid down by Uwais; JSC (as he then was) in the case of GOLOK v DIYALPWAN (1990) NWLR (Pt.139) p.411 wherein Section 224(1) of the Constitution of the Federal Republic of Nigeria, 1979 (which is a provision in pari materia with S.245 (1) of the 1999 Constitution) was interpreted. Therein, it was laid down that there is only one right of appeal to the Court of Appeal from the decision of the Customary Court of Appeal of a State. That the right pertains to a complaint or ground of appeal which raises a question of customary law alone; and that it does not accommodate any complaint or ground of appeal which does not raise question of Customary Law. That decision was followed in plethora of other cases such as ATSEN v SHA (1999) 1 NWLR (Pt.586) p. 265, PAM v GWOM (2010) 2 NWLR (Pt. 644) p.322; IYAMU v AIGBIRENWEN (1992) 2 NWLR (pt. 222) at pp.241-244; DAMBAK v MANDING (1998) 2 NWLR (Pt. 539); C.C.A; EDO STATE v AGUELE (2006) 12 NWLR (pt. 995) p. 545- and HIRNOR v YONGO (2003) 9 NWLR (pt. 824) p. 77. See also TIZA v BEGHA (supra).
The position on the issue was made clearer by Muntaka-Coomasie; JCA (as he then was) in the case of GYANG v CHAIRA (1993) 13 NWLR (Pt.581) p. 190 at 199, wherein the leaned jurist (now of the Supreme Court) stated that:
“It is manifest from the reasonable interpretation of Section 224(1) of the 1979 Constitution as amended) that:
(a) Any ground of appeal that raised the question of the failure of the Plaintiff to prove his case or her case in accordance with Customary Law, was competent ground.
(b) Any ground of appeal filed touching on res judicata cannot be foreign to Customary Law.
(c) Any ground of appeal which relates to law is clearly within the ambit of Customary Law and is valid ground of appeal.
(d) Grounds dealing with traditional inheritance of borrowing/Loan of land in dispute are competent grounds. Conversely, any grounds which are akin to omnibus grounds or general in nature is alien to customary law and is invalid, so also where the ground of appeal complains principally against the findings of Customary Court of Appeal as to facts on the root of title, or identity of the land then they are not issues of Customary law, therefore incompetent and invalid.”
Similarly, in the case of ATSEN v SHA (supra) it was held by this Court that issues on weight of evidence which is a question of fact, issues of territorial jurisdiction and jurisdiction on subject matter, admissibility of documents and bias on the part of the trial Court are not issues of Customary Law, because they do not put in issue what the Customary Law on the particular point ought to be. His Lordship Ayoola; JSC expatiated more on this issue in the case of PAM v GWOM (2000) 2 NWLR (Pt.644) p.322 when he held that:
“The plain and unambiguous meaning in Section 224(1) is that, where in civil proceedings the decision of the Customary Court of Appeal of a State with respect to any question of Customary Law the Appellant may appeal as of right, the question is; when is a decision in respect of a question of Customary Law?. I venture to think that a decision is in respect of a question of Customary Law when the controversy involves a determination of what the relevant Customary Law is and the application of Customary Law so ascertained to the question in controversy. Where the parties are in agreement as to what the applicable Customary Law is and the Customary Court of Appeal does not need to resolve any dispute as to what the applicable Customary Law is, no decision as to any question of Customary Law arises. However, when; notwithstanding the agreement of the parties as to the applicable Customary Law, there is a dispute as to the extent and manner in which such applicable Customary law determines and regulate the right, obligation or relationship of the parties having regard to facts established in the case, a resolution of such dispute can in my opinion be regarded as a decision with respect to a question of customary Law. Where the decision of the Customary Court of Appeal turns purely on facts, or on question of procedure, such decision is not with respect to a question of Customary law, notwithstanding that the applicable law is customary law.”
The grounds of appeal in that case raised issues of misdirection of fact by the trial Court, improper constitution of the Customary Court of Appeal that heard the appeal and weight of evidence. The Supreme Court held therein that they are not grounds of Customary law and therefore incompetent. This decision was followed by the Supreme Court in HIRNOR v YONGO (2003) 9 NWLR (pt.824) p.77 where the above quoted opinion of Ayoola, JSC was cited. The grounds of appeal therein were on the omnibus ground, complaints of misdirection and the nullity of the proceedings having regard to the Constitution of the trial Court. Those grounds of appeal were held by the Supreme Court to be incompetent as they do not relate to any question of Customary Law.
Now, the instant appeal is premised on three grounds, which raise issues of fair hearing, res judicata and the failure of the Respondent to prove his case before the trial Court. The Respondent herein contends that those grounds do not raise any issue with respect to questions of Customary Law. I state here straight away that, ground 3 in the Notice of Appeal, and based on the cases cited above, raise questions of Customary Law, as it raises questions on the extent and manner in which the ascertained Customary Law of the parties have been applied by the trial Court having regards to the facts established before it. It also touches on the resolution of such facts established before it. It also touches on the resolution of such facts established in the matter. I therefore hold that Ground 3 is competent.
The first Ground of Appeal raises the issue of res judicata. It is trite law that res judicata touches on the jurisdiction of the Court to litigate again on a matter which had been adjudicated upon and determined by a Court of competent jurisdiction. As rightly argued by Learned Counsel for the Appellant, the ground raises the issue of jurisdiction based on the plea of res judicata. I however find it necessary to point out that, the issue of jurisdiction raised here is on res judicata which is a question of law. It is therefore an issue of jurisdiction. See UKAEGBU v UGOJI (1991) 6 NWLR (Pt. 196) p.127 at 145; BASSEY v EKANEM (2001) 1 NWLR (Pt.694) p.364 at 372 and AKOMA v OSENWOKWU (2004) 11 NWLR (Pt.883) p.98.
Now, in the case of NWAIGWE v OKERE (2008) 13 NWLR (pt.1105) p.445, the Supreme Court held that, a Customary Court must have the power to determine whether or not it has jurisdiction to entertain the matter brought before it. Such Court being a creature of statute can therefore only exercise such jurisdiction as is conferred on it by statute or the Constitution. That, it must therefore possess the inherent power to determine whether the matter brought before it for adjudication is within jurisdiction conferred on it, as without such power, it cannot function properly as a Court of Law or of justice. His Lordship Onnoghen, JSC who delivered the lead judgment at page 476 paras. E-F agreed completely with the position of this Court, which he cited at pages 475-476 paras. G-D. Therein, this Court had held that:
“If the Customary court can determine whether or not a given matter is within its competence then the Courts which hear appeals from it must surely have jurisdiction to determine whether indeed such matter was within the jurisdiction of the lower Court. That being the case, an aggrieved party would, in my view, be acting within the provisions of Sections 224(1) and 247 (1) if he went before a higher Court on a ground of appeal that complained that the Customary Court erroneously assumed jurisdiction to entertain a matter that raised questions other than of Customary Court.”
While fully agreeing with the above opinion of this Court reproduced above, His Lordship Onnoghen, JSC, concluded at page 477 para. E-G that:
“…It follows therefore that since the concept or jurisdiction is of universal application and known to Customary Law, when applied to Customary Courts, an error of jurisdiction by a Customary Court or Customary Court of Appeal which is a defect intrinsic to adjudication, is an issue or question of customary Law within the meaning of Sections 247(1) and 224(1) of the 1979 Constitution and therefore appealable as an issue of Customary Law up to the Supreme Court. To hold otherwise is to kill the development of that branch or system of adjudication in this Country, as there would be no means of checking the excess or absence of jurisdiction in the relevant Courts and thereby encourage adjudication far in excess or absence of jurisdiction in the relevant Customary Courts, be it of first instance or appellate.”
Though where a Customary Court acts without or in excess of jurisdiction, one other method of checking that is by way of judicial review in the exercise of the supervisory jurisdiction of the High Court or the Customary Court of Appeal of State (where one has been donated to such Customary Court of Appeal); it would appear that this decision has settled it that an issue of jurisdiction can be raised as a ground of appeal from the decision of a Customary Court of Appeal to the Court of Appeal pursuant to Section 245(1) of the 1999 Constitution. It is therefore settled by this decision that the issue of jurisdiction is a universal concept, applicable to all Courts, including Customary Courts. Thus, a ground of appeal which raises an issue of jurisdiction of the Customary Court or Customary Court of Appeal may therefore form a competent ground of appeal from the decision of such Customary Court of Appeal to this Court. It therefore follows that issue 1 which touched on the issue of res judicata, which is invariably an issue of jurisdiction is competent. See also the decision of Muntaka-Coomasie; JCA (as he then was) in GYANG v CHAIRA (supra) at p. 199 to the effect that res judicata cannot be foreign to Customary Law.
I think the above stated principle is applicable to a ground of appeal to this Court from the decision of a Customary Court of Appeal, which raises the issue of fair hearing. Certainly, fair hearing is a universal concept applicable to all systems of jurisprudence in the administration of justice. It is therefore not alien to Customary Law. Furthermore, it is a fundamental right enshrined in chapter IV of the 1999 Constitution, and is binding to all Courts established either by Law of a State or the Federation. I am therefore of the strong view that Ground 2 is also competent. I had earlier held that Ground 3 is competent. On the whole therefore, the Preliminary objection fails on all grounds and is accordingly dismissed. I now proceed to consider the substantive appeal, starting with the second issue.
Arguments of the Appellant on this issue are at pages 3 – 10 of the Amended Appellant’s Brief of Arguments. Here, Learned Appellant’s Counsel conceded that the issue of adjournment is at the discretion of the judge, but that such discretion must be exercised judicially and judiciously. That where such discretion has been exercised, an appellate Court will not interfere, unless the appellate Court comes to the conclusion that the exercise of such discretion was manifestly wrong, arbitrary, reckless or contrary to justice. The cases of UNIVERSITY OF LAGOS v AIGORO (1985) 1 NWLR (Pt.1) p.145 and UNIVERSITY OF LAGOS v OLANIYAN (1985) 1 NWLR (Pt.1) p.156 were cited in support.
Learned Appellant’s Counsel referred to the record of appeal, to contend that, the Respondent opened his case on the 17/7/2003, 29/9/2003 and 22/01/2004, where it was further adjoined to the 23/2/2004 for cross examination of the Respondent who had testified as the P.W.1. That the Appellant was not in Court on the 22/1/2004 and 9/2/2004 when the matter was adjourned to the 23/2/2004. That on the said 23/2/2004, the Respondent recommenced his evidence when he applied for and was allowed to tender a document, after which the trial Customary Court instead of adjourning for cross-examination, adjourned for a visit to the locus in quo. That no hearing Notice was issued the Appellant to appear to cross-examine the Respondent, and no hearing Notice was issued to the Appellant to appear at the visit to the locus in quo. He then submitted that, the trial Court therefore did not give the Appellant a fair hearing.
Learned Counsel for the Appellant further submitted that, the trial Court had the duty to issue hearing Notices to the Appellant on the new dates adjourned for hearing not withstanding that he was absent from Court without any explanation for his absence. That the issue here, involves a breach of Section 36 of the 1999 Constitution relating to fair hearing which no Court should ignore. He relied on the cases of SCOTT-EMAKPOR v UKAVBE (1975) 12 S.C. p.41, DAWODU v OLOGUNDUDU (1986) 3 NWLR (Pt.33) p.104, LAGANJO v ARAOYE (1959) N.L.R. p.416, at 420; SANUSI v AMEYOHUN (1992) 4 NWLR (pt.237) p.527 at 556 and WAPPAH v MUORAH (2006) 18 NWLR (pt.1010) p.18; to submit that, the failure to issue hearing notice to enable the Appellant appear to cross-examine the Respondent and to participate at the visit to the locus, which is an extension of the trial proceeding, rendered the entire proceeding a nullity. That the right to fair hearing is a fundamental constitutional right guaranteed under the Constitution of Nigeria, and any breach thereof vitiates the proceedings, thus rendering same null and void, and therefore any judgment given without compliance with this fundamental principle is a nullity, which can be set aside either by the Court that gave it or by an appellate Court. The cases of GOVERNOR OF IMO STATE v NWAUWA (1997) 2 NWLR (Pt.490) p.675, BAMGBOYE v UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt.622) p.290; AMADI v APLIN (1972) 4 S.C. p.228 and DEDUWA v OKORODUDU (1976) 9-10 S.C. p.392 were cited in support. We were thus urged to set aside the judgment of the Court below which affirmed the judgment of the trial Court.
The response of the Respondent is at pages 8-14 of the Respondent’s Amended Brief of Arguments. Therein it was contended that the submissions of Learned Counsel for the Appellant is a misrepresentation of what actually transpired at the trial Court. He drew our attention to what transpired at the trial Court from the 17/4/2002 to the 23/2/2003 when the Respondent concluded his testimony and the case was adjourned for a visit to the locus in quo. He then submitted that, from what transpired in Court, it is preposterous for the Appellant to claim that he was never served with hearing Notice. That the Court is not obligated to serve a party who has chosen to abandon his case or be contemptuous of the Court, with hearing notice. That having been previously served with hearing notice and the Appellant showed lack of interest, he cannot be heard to complain that he was not served with hearing Notice. The cases of ASUOQUO v ESHIET (2008) ALL FWLR (pt.40) p.970 at 983 and ONADEKO v UNION BANK OF NIGERIA PLC (2005) ALL FWLR (pt.250) p.57 at 176 were cited in support. That, going by the above cited authorities, the Appellant who had earlier been served with hearing notice but chose to abandon their case, without any explanation, cannot complain that they were not given a fair hearing. The cases of OKEKE v PETMAG (NIG.) LTD. (2005) ALL FWLR (Pt.263) p.760 at 777 and NEWS WATCH COMMUNICATIONS LTD. v ATTA (2006) ALL FWLR (pt.318) p.580 at 611 were also cited in support. See also A.G. RIVERS STATE v UDE (2007) ALL FWLR (Pt.347) p.598 at 613-614.
Learned Counsel for the Respondent submitted therefore that, the Appellant and his Counsel were in Court when the case started, after hearing notice had been served on them. We were then urged to hold that the Appellant was given ample opportunity to be heard, but he failed, refused or ignored to utilize it; and to therefore hold that the Customary Court of Appeal was right when it held that the Appellant was given fair hearing.
The Appellant made no reply on this issue on points of law.
The principles of fair hearing which is a universal principle or concept has been enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999. Therein, all Courts in the land have been enjoined to be given equal opportunity to the parties to a dispute to present and ventilate their cases in Court. This right of fair hearing as entrenched in the Constitution is a constitutional recognition of the twin pillars of nemo judex in causa sua and audi alteram partem. The basic attributes of this principle of fair hearing envisages inter alia that:
(a) the Court shall hear both sides to a dispute, not only on the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case;
(b) the Court or tribunal gives equal treatment, opportunity and consideration to the parties concerned;
(c) all the parties to be affected by the decision of the Court be informed of and granted access to such place of the hearing, which must be in Public;
(d) having regard to all the circumstances in every material decision in the case; justice must not only be done but must manifestly be seen to have been done.
Where a trial Court fails or neglects to observe any of the above stated pre-conditions to a fair hearing, a serious breach of the constitutionally guaranteed right to fair hearing under Section 36(1) of the 1999 Constitution, would have been occasioned. See ADIGUN v A.G; OYO STATE (1987) 1 NWLR (pt.53) p.678; SALEH v MONGUNO (2003) 1 NWLR (Pt.801) p-221: USANI v DUKE (2004) 7 NWLR (Pt.871) p.116; BANGBOYE v UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt.622) P.290; S & D CONST. CO. LTD. v AYOKU (2011) 13 NWLR (Pt.1265) p.487; ODIGWE v J.S.C; DELTA STATE (2011) 10 NWLR (Pt.1255) p.254 and OVUNWO V WOKO (2011) 17 NWLR (Pt.1277) P.522.
The Appellant’s complaint in this appeal is built on a breach of the audi alteram partem principle, in that he was not heard in the matter before judgment was pronounced against him. The essence of this principle; audi alteram partem; is that, a verdict should not be pronounced or entered against a man on a matter relating to his civil rights or obligations before a Court or tribunal without his being given an opportunity to be heard. Thus, a denial of the right to be heard is a breach of the principles of national justice as enshrined in our Constitution. The burden is on the party who complains about a breach of his right to be heard, to prove the breach, which must be done in the light of the facts of the case. Such a party must prove the specific act or acts which he alleged amount to a denial of his right to be heard. See GBADAMOSI v DAIRO (2007) 3 NWLR (Pt. 1021) p.282; IMASUEN v UNIVERSITY OF BENIN (2010) 3 NWLR (Pt.1182) p.591 and AJAYI v N.U.R.T.W. (2009) 8 NWLR (Pt.1144) p.423 at pp. 450-451.
The Kernel of the Appellant’s complaint in this appeal is that, from the record of appeal, there is no evidence to show that, from the date the Respondent commenced his testimony up to the date of judgment, the Appellant or his Counsel was served with a hearing Notice. It is not in doubt that, the issue whether or not a party to a proceeding was made aware of the date of the Suit is a fundamental consideration, when the matter turns on whether he was afforded an opportunity to be heard. This is so because, it is the law that, it is the service of hearing Notice that confers on a Court jurisdiction to entertain either application or the substantive matter before it. In the absence of issuance of a hearing Notice on the parties, the trial Court would have no jurisdiction to hear and adjudicate on the matter. Accordingly, once a party has been served a hearing notice, the Court would be competent to proceed with the matter without him, as at that instance, the Court would be clothed with the vires to proceed against him. This is because, once there is prove of service on a party, his absence may be construed as negligent or deliberate. In that instance, he cannot claim any breach of fair hearing, since he has on his own volition absented himself at the proceedings affecting his rights or obligations. Generally however, failure to effect hearing notice or of any process, where one is required renders the proceedings and judgment subsequent thereon a nullity. See ALH. Y. DAN HAUSA & CO. LTD. V PANATRADE LTD (1993) N.W.L.R (Pt. 298) P.204; DEDUMA v OKORODUDU (1976) 9-10 S.C. p.228; OGUNDOYIN v ADEYEMI (2001) 13 NWLR (Pt.730) p.403; ODENIJI v AKINPELU (1998) 7 NWLR (pt.557) P.174; OYEYIPO v OYINLOYE (1987) NWLR Pt.50) p-464 and OKON v ADIGWE (2011) 15 NWLR (Pt.1270) p.350.
I have carefully read the record of appeal. The record of appeal reveals that proceedings in the matter began on the 08/5/2000. See page 17 of the record. Therein, the Court observed that the Plaintiff and his Counsel were not in Court, and further observed that it had declined striking out the matter for want of prosecution. The matter was therefore struck out for want of prosecution with N200.00 cost in favour of the Defendant/Appellant. It would appear that the matter was relisted, as there was further proceeding in the matter on the 17/4/2002. On that day both parties were represented by Counsel whereof the plea of the Defendant/Appellant was taken on the claim. That same day, Counsel for the Defendant/Appellant raised a plea of re judicata, but as Counsel for the Plaintiff/Respondent contended that he had not been served any motion which raised the plea of res judicata, the matter was adjourned to the 08/5/2002 for the issue of res judicata to be argued. The issue was argued on the 08/5/2002 and the Court adjourned to 14/5/2002 for defence Counsel to respond on points of law. That was done and the Court then adjourned to the 13/6/2002 for ruling. On that 13/6/2002, the trial Court delivered its ruling dismissing the plea of res judicata. It further adjourned the matter to the 26/6/2002 for hearing, after taking the Defendant/Appellant’s Plea.
After the 26/6/2002, there was no other proceeding in the matter till presumably due to an appeal filed by the Defendant/Appellant against the ruling dismissing his plea of res judicata. Learned Counsel for the plaintiff/Respondent then pleaded that he be allowed to proceed with his case, but the Court adjourned to the 17/10/2002. On the said 17/10/2002, the Defendant/Appellant and his Counsel were not in Court. The matter was then adjourned to the 25/10/2002 to enable the Court await the judgment of the Customary Court of Appeal in respect of the appeal earlier filed by the Defendant against the ruling on his plea of res judicata, and a hearing Notice was ordered to be issued on the Defendant/Appellant. There was however no proceeding on the 25/10/2002. There was a proceeding on the 28/10/2002 and the parties were represented by Counsel. The matter was then adjourned to the 14/11/2002 to argue the Plaintiff/Respondent’s Motion for Interlocutory injunction. The Motion was argued by both Counsel on the 14/1/2002 and 18/11/2002, and the Court adjourned to the 04/12/2002 for ruling. However, ruling on the matter was not delivered till the 03/2/2003; in the absence of the plaintiff/Respondent and his Counsel. The Court then adjourned to the 19/3/2003 for hearing of the substantive suit. There was no other proceeding in the matter till 15/5/2003. On that date, both parties were represented by Counsel. The matter could not proceed because Counsel for the plaintiff/Respondent requested for an adjournment to enable him prepare for the hearing. The case was then adjourned to the 02/6/2003 for hearing.
The record further shows that there was no proceeding on the 02/6/2003. The Defendant/Appellant was represented by Counsel, but the plaintiff/Respondent’s Counsel was not in Court. The Plaintiff who was in Court was then asked by the Court whether he would proceed with the matter in the absence of his Counsel. He answered in the affirmative, and began his testimony. He could not conclude his testimony, so the Court adjourned to the 13/8/2003 for continuation of hearing. There was no proceeding on the 13/8/2003. The record however shows that proceedings continued on the 29/9/2003. Both parties were in Court and duly represented by Counsel; whereof the Plaintiff continued with his testimony. Again, he could not conclude, so the matter was further adjourned to the 16/10/2003. The Court did not sit till the 03/11/2003. Parties and their counsel were in court, but Counsel for the Defendant/Appellant requested for an adjournment due to ill-health and the matter was adjourned to the 10/12/2003. Again, the Court did not sit till the 22/01/2004. On that date, the Defendant/Appellant was duly represented by Counsel, whereof the Plaintiff continued with and concluded his evidence, and the matter was then adjourned to the 9/02/2004 for cross-examination.
It would be seen therefore, that from inception of the case up to the point the plaintiff/Respondent concluded his evidence in-chief, there was no problem. The problem started on the 09/2/2004, when the defence was to cross-examine the plaintiff/Respondent, but neither Defendant/Appellant nor his Counsel was in Court and no explanation was given for their absence. The Court then granted them one more adjournment to be in Court and then adjourned to the 23/2/2004. There is however no evidence on the record showing that a hearing Notice of the new date was ordered to be issued on the Defendant/Appellant or his Counsel. On the 23/2/2004, the Defendant/Appellant and his Counsel were not in Court. The plaintiff/Respondent then reopened his case by leave of the Court and tendered two documents which were admitted in evidence as Exhibit “E” and “F” respectively. The trial Court then recorded that in view of the refusal of the Defendant/Appellant to be in Court, he was adjourning for a visit to the locus in quo. The trial Court then embarked on a visit to the locus in quo on the 05/3/2004. The defence was unrepresented at the visit to the locus in quo. The Court then adjourned for judgment at the locus, and judgment was subsequently delivered against the Defendant/Appellant on the 31/5/2004.
I have laboured to chronicle the events at the trial Court leading to this appeal, in order to see whether or not the Appellant was afforded a fair trial or an opportunity to be heard. This is so because, it is now settled that, a party who had the opportunity of being heard, but failed to utilize such opportunity, cannot be heard to complain that his right to be heard was breached. Put another way, a party to a Suit who already knows or is presumed, on the available evidence on record, to know of the date for which his case is scheduled for hearing, does not require further notice to be served on him. Where such presumption can reasonably be inputted to him, he cannot complain that his right to be heard has been trampled upon. See ABIOLA v OLAWOYE (2006) 13 NWLR (pt. 996) p.1 at 23 paras. C-F; A.S.T.C. v QUORUM CONSORTIUM LTD (2009) 9 NWLR (Pt.1145) p.1 at 35 paras A. B; BILL CONST. CO. LTD. v IMANI & SONS LTD (2006) 19 NWLR (Pt. 1013) p.1; A.N.P.P. v I.N.E.C (2010) 13 NWLR (Pt.1212) p.549 at 606-607 paras. G-E and CHAMI v U.B.A. PLC (2010) 6 NWLR (Pt.1191) p. 474. In determining the issue, what should weigh in the mind of the court is not whether any injustice has been occasioned to any of the parties due to want of hearing, but whether, the party complaining was afforded opportunity to be heard. See NDABA (NIG.) LTD v U.B.N. PLC (2009) 13 NWLR PT. 1158) p.256.
In the instant case, I am of the view that, on the 09/2/2004, when the trial Court exercised its discretion to grant or allow one more adjournment to enable the defendant, who was not in Court, to appear for the cross-examination of the P.W.1 (Respondent), it ought to have issued a fresh hearing notice on the Appellant against the new date of adjournment. It is the law that, where a Court adjourns a case beyond a date which the litigants have notice of the hearing, the Court has a duty to notify the parties of the subsequent adjourned date. See A.G.; RIVERS STATE v UDE (2006) 17 NWLR (pt. 1008) p. 436; BAMGBOYE v UNIVERSITY of ILORIN (supra); OMABUMA v OWHOFATSO (2006) 5 NWLR (Pt.972) p.40; S.P.D.C. (NIG.) LTD v NIGER OPTICAL SERVICES GO LTD. (2004) 7 NWLR (Pt.872) p.420. The trial customary court was therefore in error when it failed to issue a hearing notice of the new date the case was adjourned to for hearing.
On the 23/2/2004, when the Respondent re-opened his case by tendering two documents in the absence of the defence, the Court also had a duty to further adjourn the matter and issue hearing notice to then Appellant to appear on a new date for the cross-examination of the Respondent. Furthermore, even if the trial Court could be said to have foreclosed the Appellant from cross-examining the Respondent, it would be expected that the Court would give the Appellant an opportunity to present his own side of the case. In other words, after the conclusion of the Respondent’s case, the trial Court had a duty; indeed an obligation to adjourn the case and issue a hearing notice on the Appellant to appear and present his defence. Alas, the trial Court did not do so, but completely foreclosed the Appellant from presenting his defence. I am therefore of the view that the trial Court failed to afford the Appellant the opportunity to cross-examine the Respondent and to present his defence. The Customary Court of Appeal was therefore certainly in error, when it held that the Appellant was given a fair hearing by the trial Customary Court. He was not. His right to fair hearing was therefore breached. It is trite law that failure to issue and serve a hearing notice when one is required renders the entire proceedings and decision of the trial Court a nullity. See OKON v ADIGWE (supra) at p.375 para E-G.
Now, as stated above, a decision of a trial Court which is given in breach of the principle or rather, right to fair hearing as enshrined in Section 36(1) of the 1999 Constitution (supra), is a null and void. In other words, where a Court decides an issue or action without hearing or giving the parties or one of the parties the opportunity to be heard, such a decision is a nullity. In the instant case, having decided that, the trial Court neither heard nor gave the Appellant the opportunity to present his defence or cross-examine the Respondent before it determined the Suit, the judgment of the trial Customary Court which the Court below affirmed is a complete nullity. See SEYO v TUMFURE (2007) 8 NWLR (Pt.1035) p.45; TSOKMA MOTORS (NIG.) LTD. v U.B.A. PLC (2008) 2 NWLR (Pt. 1071) p.347; TAMTI v N.C.S.B. (2009) 7 NWLR (pt.1141) p.631 CHIME v ONYIA (2009) 2 NWLR (Pt. 1124) p.1 and AGBAEZE v. C.C. ITEM DISTRICT (2007) 7 NWLR (Pt. 1032) p.196.
Having thus found, the only available remedy is to set aside the judgment of the Court below delivered on the 30/4/2008, which affirmed the judgment of the Customary Court of Owerri North Local Government Area delivered on the 31/5/2004. The judgment having been declared a nullity, I would have no jurisdiction to pronounce on the other issues in this appeal.
On the whole therefore, it is my view and I do hold that this appeal has merit. It is accordingly allowed. Consequently, I order that this matter be remitted to the trial court for hearing de novo.
I award fifty thousand (N50,000.00) naira as cost against the Respondent in favour of the Appellant.
UWANI MUSA ABBA AJI, J.C.A: I have had the advantage of reading in draft the lead judgment of my learned brother, H. S. Tsammani, JCA just delivered.
I agree entirely with the reasoning and conclusions reached therein that the appeal has merit, and I also allow the appeal.
I just wish to add on the issue of fair hearing which is a universal concept applicable to all systems of jurisprudence in the administration of justice. It is entrenched in our Constitution in recognition of the twin pillars of nemo judex in causa sua and audialteram partem. The right to fair hearing is a fundamental Constitutional right guaranteed under the Constitution and any breach thereof vitiates the proceedings, rendering same null and void. In the instant case therefore, the failure of the learned trial judge to give the Appellant opportunity to be heard before judgment is pronounced against him is a serious breach of the Constitutionally guaranteed right to fair hearing under Section 36(1) of the 1999 Constitution as amended. See Saleh vs. Monguno (2003) 1 NWLR 80) 221; Usani vs. Duke (2004) 7 NWLR (811) 116; S & D Const. co. Ltd vs. Ayoku (2011) 13 NWLR (PT 1265) 487: Odigwe vs. JSC Delta State (2011) 10 NWLR (PT 1255) 254; and Ovunwo vs. Woko (2011) 17 NWLR (PT 1277) 522.
The kernel of the complaint in the instant appeal is that there was no service of any hearing notice on the Appellant or his counsel from the time Respondent commenced his testimony up to the date judgment was delivered. It is trite that it is service of the hearing notice that confers on a Court the jurisdiction to entertain the matter before it. Where there is no service of the hearing notice on the parties, then the trial Court would have no jurisdiction to hear and determine the matter. Thus failure to effect hearing notice of any process where one is required renders the proceedings and the subsequent judgment thereon a nullity, See Ogundoyin v. Adigwe (2001) 13 NWLR (PT 379) 403; Okon vs. Adigwe (2011) 15 NWLR (PT 1270) 359.
It is for this reason and the fuller reasons in the lead judgment of my learned brother that I also allow the appeal. I also order that the matter be remitted to the trial Court for trial denovo. I also endorse the consequential order as to costs.
JOHN INYANG OKORO, J.C.A: My learned brother, HARUNA SIMON TSAMMANI, JCA obliged me in advance a copy of his judgment which he has just delivered for which I am in total agreement that this appeal has merit which I join to allow. Section 36 of the 1999 constitution of the Federal Republic of Nigeria (as amended) is an entrenchment of the common law principle of the right to fair hearing which is an inherent and necessary element in the determination of every dispute. The provision of Sub section (1) of the section ensures that the rights and obligations of every citizen is formally and conclusively determined after hearing the person whose right and obligation are involved and would be affected by the decision. It is therefore a fundamental and constitutional right of the person whose right and obligation is conclusively determined to be heard. See BAKARE v. LAGOS STATE CIVIL SERVICE COMMISSION & ANOR (1992) NWLR (pt.262) 641; OSHO V. FOREIGN FINANCE CORPORATION (1991) 4 NWLR (pt 184) 157; BABA v. NCATC (1991) 5 NWLR (pt. 192) 388; CHIME V. ONYIA (2009) 2 NWLR (Pt.1124) 1.
It is trite that any breach of the provision of the fundamental right to fair hearing renders the proceedings and the judgment generated therefore a nullity. See OKAFOR v. A.G ANAMBRA (1991) 6 NWLR (pt. 200) 659; ADIGUN v. A.G OYO STATE (1987) 1 NWLR (pt. 53) 678; OBODO V. OLOMU (1987) 3 NWLR (Pt. 59) 111. Having held the proceedings and judgment in this appeal to be a nullity, the appellant having been denied fair hearing, I hold that this appeal be and is hereby allowed. I abide by all the consequential orders made in the lead judgment, that relating to costs, inclusive.
Appearances
C.K. Uba; Esq.For Appellant
AND
C.T. Okeke; Esq. with R.C. Mgbenu; Esq.For Respondent
